Ward Pletcher, Jr. v. Hobet Mining, LLC and Arch Coal, Incorporated (Board decision, December 18, 2020)

BRB interlocutory order. This unpublished order is not precedent. The Benefits Review Board granted a limited remand for the administrative law judge to consider whether expert draft reports should have been disclosed and whether a remedy is needed. The underlying benefits award remains subject to that review. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may request Board reconsideration within 30 days under § 802.407.

Plain-English summary

After a judge awarded Ward Pletcher black lung benefits, the employer asked the Board to remand over draft reports prepared by a medical expert. The employer argued the drafts had to be disclosed under the Department of Labor’s rule. The Board held that the judge must first decide whether the disclosure rule was violated and, if so, what sanction or evidentiary remedy is appropriate. It granted a limited remand and rejected Pletcher’s request for oral argument. The employer’s separate consolidation request became moot.

Decision snapshot

• Authority: Expert disclosure under 20 C.F.R. § 725.413 and the Board’s review limits under § 802.301(a).
• Outcome: Limited remand on disclosure and possible remedies; benefits may require renewed review.
• Key point: The Board left the initial factual and evidentiary findings on disputed expert drafts to the administrative law judge.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 20-0116 BLA
Case No. 2017-BLA-05230

WARD PLETCHER, JR.
)
)
Claimant-Respondent
)
)
v. )
)
HOBET MINING, LLC
) DATE ISSUED: 12/18/2020
)
and
)
)
ARCH COAL, INCORPORATED
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
) ORDER

On January 21, 2020, Employer filed a Motion to Consolidate, asking that the appeal

in the above captioned case, BRB No. 20-0116 BLA, be consolidated for decision with two

cases pending before the Board: Melton v. Apogee Coal Co., Inc./Arch Coal, Inc., BRB

20-0115 BLA and Workman v. Hobet Mining Co./Arch Coal, Inc., BRB No. 20-0132 BLA.

The Director, Office of Workers’ Compensation Programs (the Director), responds,

opposing the motion.
On February 21, 2020, Employer filed a Motion to Remand and Suspend Briefing

in the current case, alleging Claimant failed to comply with the Department of Labor’s

disclosure requirements under 20 C.F.R. §725.413 because he did not disclose draft reports

that a physician prepared prior to his final report. Claimant responds, urging the Board to

deny Employer’s request, asserting the regulation does not require disclosure of draft

reports of a testifying medical expert. On May 6, 2020, Claimant filed a Motion for Oral

Argument, asserting it is appropriate and necessary to determine the proper interpretation

of 20 C.F.R. §725.413. The Director responds that a limited remand is necessary for the

administrative law judge to initially determine whether Claimant violated 20 C.F.R.

§725.413 and, if so, what sanctions, if any, should be imposed. The Director disagrees,

however, with Claimant’s argument that there should be different disclosure requirements

for testifying and non-testifying experts.

Because the administrative law judge did not consider the parties’ arguments and

render a finding on this issue, the proper course is to remand the case, as the Board lacks

the authority in the first instance to make evidentiary determinations, render factual

findings, or answer the questions presented based on rationales not addressed in the

administrative law judge’s Decision and Order Awarding Benefits. 20 C.F.R. §802.301(a).

Consequently, we grant Employer’s motion to remand the case for the limited purpose of

addressing whether Claimant violated the disclosure requirements pursuant to 20 C.F.R.

2
§725.413 and, if a violation is found, determining whether sanctions are appropriate.1

Thus, we reject Claimant’s motion for oral argument. As this case will be remanded to the

administrative law judge, Employer’s motion to consolidate is moot.

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

GREG J. BUZZARD
Administrative Appeals Judge

DANIEL T. GRESH
Administrative Appeals Judge

1
If the administrative law judge finds a violation, he should also consider appropriate remedial evidentiary rulings. If the administrative law judge’s evidentiary rulings change the medical evidence in the record or the weight given to that evidence, he must re-evaluate Claimant’s entitlement to benefits.